What happens when a person dies days before signing their will? Should a draft document govern the distribution of their Estate? In this case, the Court confronts the difficult line between a mere expression of intention and a “fixed and final” testamentary intention under Ontario’s will-validation provisions. The decision underscores how unfinished draft wills and informal notes can fail to meet the legal threshold required to override intestacy.

Background

Timothy Bechtel (“Timothy” or the “Deceased”), passed away suddenly on September 30, 2024, due to a heart attack.[1]

Timothy was never married, had no common law spouse and no children. He was predeceased by his parents and predeceased by his brother Gregory.[2]

Timothy was survived by his remaining four siblings, Terry, Darryl, Judy, and Keith,[3] but was estranged from them during his lifetime.[4] Timothy was also survived by three of his nephews, (Andy, Kevin, and Mark) all of whom are Gregory’s children.[5]

Together Terry, Darryl, Judy, Keith, Andy, Kevin, and Mark are the respondents to the application (collectively, the “Respondents”).[6]

Timothy’s Wills and Draft Will

In or around August 2024, Timothy was hospitalized.[7] On or around September 18, 2024, Timothy had a meeting with a lawyer for the purposes of preparing a will and power of attorney documents.[8]

On or about September 23, 2024, the drafting solicitor left a letter for Timothy which enclosed drafts of Timothy’s will and power of attorney documents, and confirmed a meeting for October 16, 2024, to execute the enclosed drafts.[9] As mentioned above, Timothy passed away suddenly on September 30, 2024, before he was able to execute the above-mentioned draft documents.

Nonetheless, the dispositive provisions of the draft will, are as follows:

1. Tammy Smith (“Tammy” or the “Applicant”) is appointed as Estate Trustee, with Terry Emon (“Terry”), a friend of the Deceased, being named as the alternate Estate Trustee;
2. Each nephew (Mark, Andy, and Kevin) – is to receive $75,000;
3. Scott Harper (“Scott”), a friend of the Deceased – is to receive $100,000;
4. Terry – is to receive $50,000;
5. The Arnprior Humane Society – is to receive $75,000;
6. Doug Smith, one of the Deceased’s neighbours, – is to receive his riding lawn mower; and
7. Tammy – is to receive the residue of the Estate.[10]

After Timothy’s death, Tammy attended the home of the Deceased and found the letter from the drafting solicitor and enclosed draft wills.[11] Further, Tammy also found an undated document in Timothy’s handwriting listing his assets with general instructions.[12] The dispositive provisions of this undated document are as follows:

1. Each nephew (Mark, Andy, and Kevin) – is to receive $50,000;
2. Scott and Sheri Harper – is to receive $50,000 each;
3. The Arnprior Animal Hospital – is to receive $50,000;
4. Tammy – is to receive “everything else”; and
5. “My siblings not to be notified”.[13]

The Application & The Parties’ Positions

Tammy brings an Application seeking to validate the draft will pursuant to section 21.1(1) of the SLRA (the “Application”).[14] Without an order validating the draft will, the Estate distribution will be administered pursuant to the SLRA’s provisions regarding intestacy.[15]

Terry opposes the Application, while the remaining respondents have not taken a position.[16]

Law and Analysis

The Court begins by reviewing the validating provision of the SLRA, namely section 21.1 making reference subsection 2 as well:

Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. 2021, c. 4, Sched. 9, s. 5.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.^[17]

The Court finds that the draft will does not satisfy the formal requirements for due execution of a testamentary document as prescribed by the SLRA, making specific reference to section 4(2) of the SLRA.[18]

In terms of caselaw, the Court begins its analysis by referring to the recent Court of Appeal decision of Hejno v Hejno.[19] In reviewing a plethora of the remaining relevant caselaw, the Court finds that the key consideration where validation is contemplated, is the demonstration of a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”.[20]

In determining whether the draft will at bar ought to be validated, the Court notes that aside from Grattan,[21] the courts in Ontario have more frequently allowed validation to cure technical deficiencies to a signed will.[22] The Court then turns to Madhani v Fast,[23] wherein Justice Sanfilippo denied an application to validate a draft will on the basis that it was in electronic form and because the applicant could not establish that the will reflected a deliberate or fixed and final testamentary intention.

Insofar as the case at bar was concerned, the Court notes that the distinction between expressions of intentions and testamentary intentions are at the heart of this case and relies on Madhani,[24] which notes that:

Expressions of intention as to how a testator would like their property to be disposed of after death are not testamentary intentions. Expressions of intentions, alone, are insufficient to ground a valid will.

Disposition

Ultimately, the Court found that the Applicant was unable to demonstrate that Timothy’s draft will reflects testamentary intentions within the meaning of fixed and final expression of intention as to the disposal of his property on death.

Accordingly, the Application was dismissed.

Final Remarks

Ultimately, this decision reinforces that the Court’s validating power pursuant to section 21.1 of the SLRA is not a mechanism to give effect to incomplete estate planning or preliminary expressions of intention.

While the provision allows the Court to validate documents that fail to comply with formal execution requirements, the applicant must demonstrate that the document represents a deliberate, fixed, and final testamentary intention regarding the disposition of the deceased’s property on death. Where the evidence instead reflects evolving plans, draft instruments, or informal notes that fall short of a settled testamentary decision, the Court may decline to validate the document even in the face of intestacy.

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[1] Smith v Bechtel et al., 2026 ONSC 975, at para 15 (“Smith v Bechtel”).

[2] Ibid., at paras 4 and 7.

[3] Ibid., at para 7.

[4] Ibid., at para 3.

[5] Ibid., at para 7.

[6] Ibid.

[7] Ibid., at para 11.

[8] Ibid.

[9] Ibid., at para 11.

[10] Ibid., at para 14.

[11] Ibid., at para 16.

[12] Ibid., at para 17.

[13] Ibid.

[14] Ibid., at para 1; Succession Law Reform Act, R.S.O. 1990, c. S.26, at section 21.1 (“SLRA”).

[15] Ibid., at para 5. For further reading on what an intestate distribution entails, check out my blog all about intestacy which can be found here.

[16] Ibid., at para 6.

[17] Ibid., at para 21; SLRA, at section 21.1

[18] Ibid., at para 23.

[19] Ibid., at para 25; Hejno v Hejno, 2025 ONCA 876.

[20] See Smith v Bechtel, at para 27.

[21] Grattan v Grattan, unreported decision February 1, 2023, Court File No. 22-0054 Superior Court of Justice Belleville.

[22] Smith v Bechtel, at para 29.

[23] Madhani v Fast, 2025 ONSC 4100.

[24] Smith v Bechtel, at paras 33-34.